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Judiciary has affirmed it's a fearless custodian of justice

By Leonard Khafafa | May 19th 2021
President Uhuru Kenyatta and former Prime Minister display a copy of the during the presentation of the Building Bridges Initiative (BBI) report at Kisii State Lodge. [File, Standard]

Understandably, supporters of proposed constitutional amendments through the Building Bridges Initiative (BBI) are upset. They have taken umbrage at perceived slights against President Uhuru Kenyatta by last week’s five-bench judgment that appears to have put paid to BBI’s efforts.

At first blush, the judgment seemed targeted. In the words of BBI secretariat co-chairman Junet Mohammed, a “personalised attack against the person and Office of the President.” But a perusal of the entire judgment, though parts of it have been written with some asperity, reveals it to be an objective indictment of the BBI.

It confirms Kenyans’ worst fears that some of these proposals only serve to create more places at the national feeding trough, at the expense of ordinary Kenyans. Surplus to requirements are the 100-plus seats for MPs and the expansion of the Executive.

If the judges come across as disrespectful, one might say it is par for the course. After all, the Executive has invited derision through acts of commission and omission. These have undermined, not only the Judiciary, but also Parliament. A case in point is the unprecedented willful disregard of a number of court orders. Another is the curtailing of much needed Judiciary subventions. Yet another, is the refusal to swear in 41 judges.

There are those with a false notion of nationalism; who expect rote genuflection to the altar of the presidency. They take offence at the fact that the judges addressed the president as “Mr Kenyatta,” instead of “His Excellency.” They believe that this is part of the Judiciary’s one-upmanship against the president in a parochial supremacy contest. This could not be further from the truth!

Whilst no doubt, the president has noble intentions, one also appreciates the adage, “the road to hell is paved with good intentions.” Certainly, going by the well-reasoned judgment last week, the BBI proposals have been on a veritable hell-run. From the comments of many Kenyans, it does not show itself to be some ineffable blessing but to be out of whack with their aspirations.

The BBI proponents have indicated a desire to appeal last week’s judgment. Whichever way it goes, there will still be lessons of inestimable value learnt. First off, it has disabused Kenyans of the notion that the president and the ruling elite alone, know what is best for the country. It has forced, as the Constitution intends, the rank and file to take an active part in national conversations, especially those that pertain to their destinies.

Second, the judgment has set out a template that, if followed, will ensure the Constitution will never be captive to Executive caprice or subject to hyper-amendment. Civic education, public participation, constituent assembly and referendum are standards that henceforth, will be ingrained in the minds of those who wish to change the constitutional order through popular initiative.

Third, the Judiciary has asserted itself as a fearless custodian of justice. Unlike the namby-pamby legislature, it has refused to become an appendage of the Executive. It has affirmed constitutionalism and the rule of law. It has declared in no uncertain terms that one cannot amend the constitution through unconstitutional means.

One hopes that the futility of the fatuous wars between the Executive and the Judiciary will be evident in the coming days; that telling the president to respect the Constitution is not, in and of itself, disrespectful to his person.

Mr Khafafa is a public policy analyst. 


Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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